Mowry v. Starbuck

4 Cal. 274

Opinion

Mr. Ch. J. Murray

delivered the opinion of the Court.

Mr. J. Heydeneeldt concurred.

The time provided by the statute in which a jury shall be returned by the Sheriff, is directory, and not mandatory.

It rests in the sound discretion of the Courts to allow further evidence to be introduced by either, or both parties, after the testimony has been closed. In this case, the suit having been brought on a quantum meruit for “work and labor,” it was perfectly competent to admit testimony to prove that the original contract plan had been changed, at the request of the defendant, and also the price or value of the extra work performed. It was certainly error to allow the plaintiff to read from and comment upon a paper not in evidence; but, as we can see no possible harm arising from it to the defendants in this case, we will not disturb the verdict on so technical a ground.

Judgment affirmed, with costs.